July 1, 2009
Dear Sir or Madam,
* I am a CERTIFIED FINANCIAL PLANNER ô practitioner, a Financial Planning Association (FPA) member and SEC-registered investment adviser representative for Securities America Advisors, Inc. I am an independent advisor.
* I am STONGLY OPPOSED to the proposed requirement to the custody rule that would force investment advisors to participate in surprise audits by an accounting firm. My reasons for OPPOSING this rule are many, but focus on the following areas:
* The proposed surprise audit appears to be a knee jerk over reaction to the (warranted) criticism of the SECís failures to properly regulate Madoff and other firms. Surprise audits impose unreasonable, expensive, tests for firms that follow rules. Failures by the SEC should result in scrutiny and tests to the SECís organization, NOT innocent firms trying to do a good job by their clients.
* The SEC already resolved one of the major problems with the custody rule, which was eliminating a loophole from registration for certain accounting firms with the PCAOB that Madoff's accountant used to avoid detection of its phony auditing practices. Again, this was a failure by the SEC, and should not be the basis for imposing unreasonable and expensive tests on the firms that play by the rules.
* It was the SEC and FINRA that failed to heed repeated warnings from the media and others. It was the SEC and FINRA that did not aggressively enforce rules already in place to protect Madoffís investors, and protect investors from other Ponzi schemes. The SEC should hold FINRA accountable for its shared oversight of Bernie Madoff in conducting the Ponzi scheme for decades as a broker-dealer before registering two years ago as an investment adviser. Imposing irrelevant, expensive, and excessive tests on RIAís will NOT make the SEC and FINRA (as they are today) more effective!
* The Ponzi schemes uncovered by the SEC had nothing to do with fees deducted by investment advisers. As far as we are aware, there have been no systemic problems in this area and are unnecessary, costly and burdensome, particularly for small, independent investment advisers.
* The new surprise audit requirement will add additional costs to my business that will ultimately be passed on to my clients. Already, additional SIPC charges will be passed on to my clients, and increased burdens will force me to reduce the number of clients I can service effectively. Ultimately, I fear that it will become too expensive to work with anyone except for clients of the highest net worth, and make it more difficult for ordinary Americans to obtain sound, objective financial planning and advice from qualified professionals help them plan for their future.
In order to enhance consumer protection, I would support Congress in appropriating additional resources to the SEC to hire and train additional examination staff to increase the regular audit cycle of investment advisers. Additional personnel should be added to investigate specific complaints and inquiries about firms that appear to be circumventing the rules. These actions alone could have saved investors untold sums because they would have focused oversight resources on the offending firms, and would have allowed innocent firms to spend valuable time helping their clients with their financial goals.